Appeal help please

Hrobbo84

Hi , I've tried to read though everything but my brains overloaded so any help would be appreciated 🙂. 

I got a parking ticket in my partners car , for over saying by 37 minutes. (Total stay 3hr 37) 

I paid £3.30 which was the exact price for 4 hours (so I thought ) . I hadn't realised there was 2 sets of prices based on week days and weekends . It was a dreadful day and I just looked quickly at the pricing missing the fact there was 2 sets .   I paid the price and recieved no change or asked for more money so didn't have any reason to question it .

I have photos of the machine and it shows all the writing is in black , which the exception of a very small 'no change given' in faded yellow , barley visible.  Which I think shows intention of trying to mislead .

They have also changed the pricing since , and now had one set price for all days of the week . So again I feel this shows that the old pricing was an issue having two different sets . 

I appealed it when the ticket came through in my partners name (without disclosure of driver) but that was denied without any further info .

My partner works offshore and wasn't even in the county at the time of the ticket which I can prove .

I have got as far as setting up the money claims account and informing of notice to appeal.  In the appeal should I put all this information , but then would I disclose myself as the driver or could I just (in My partners name) state although he wasn't the driver he is aware of the facts involved ?.

I only underpaid 20p , and I think I can show full intent of paying and that certain information was misleading and lead to the error . But not sure how to go about it without disclosing that I was the driver.

Sorry for the babbling ,any info would be appreciated. 

Hrobbo84

Photo of 'no change given'  , and the change in pricing FYI.  (Photos taken on a different sunny day ! )

Gr1pr

What stage is this at  ?  

Do you have an N1SDT Court claim pack from the CNBC in Northampton using MCOL,  in YOUR NAME   ?

or is it in the name of your absent partner   ?

If its a Money claim in your name,  hide the claim form reference number,  the VRM details in the POC on the lower left of the claim form,  the password on the lower right side and also the name and address too, so all 4 items are hidden,  then take a picture and post it here below 

Post the issue date from the claim form and the date when you completed the AOS online too, so 2 dates

I am not sure what stage you are at, so forgive me if i have assumed that its a court claim,  because you mentioned Money claim,  alarm bells went off

You asked for appeal help, but you don't appeal a money claim 

If its a money claim in your partners name,  only that person can defend it,  not you,  regardless of who was driving 

Hrobbo84

Hi , my apologies I mean defence , not appeal.  Yes it's been transferred to court.

I filed the acknowledgement on the 5th of this month  .

The claim issue date was the 28th May. 

All details are in my partners name as he is the registered keeper. 

Thanks 

Gr1pr

So its an ECP via DCB Legal court claim pack from the CNBC in Northampton using MCOL,  issue date 29th May

Issued to the RK in their name,  not your name,  so you are a "stranger" to the claim 

Was the MCOL login done in the defendants own name,  own account   ?  ( or in your account   ?  ) , including the AOS filed on the 5th june   ?  ( nothing should be done in your name,  , all in your partners account,  partners name,  partners email address  etc  )

Your partners defence submission deadline will be 4pm on 1st July , by email 

Their paragraph 2 has an easy ending,  keeper but not the driver,  2 minutes of a task

Their Paragraph 3 is the same as all the others on here recently,  with only the contravention date needing to be correct , as shown in the poc on the lower left of the picture 

Then it may need an extra paragraph 3,1, concise,  but only if necessary 

The rest of the template defence is unchanged,  but will be emailed from your partners email address,  suitably signed by them using a digital email signature 

Hrobbo84

Thank you for your replies , much appreciated. 

Yes I have filed in his gateway account and set the mcol in his name , the only thing in my name is the email as he's offshore and may have not been able to check or email correspondence on time so often uses mine anyway .

So just to make sure I'm correct,  I would file all 30 paragraphs as they are with the exception of the ones you've noted . I would note note down any of the evidence I've mentioned such as the faded parking information etc? .

Gr1pr

Post the adapted 2 or 3 paragraphs below for critique or advice about them first 

Eventually all 30 or so will be used,  by adding the template paragraphs to your adapted ones

Before july the completed and signed pdf defence document will be emailed to claim.responses,  in his name 

I am truly glad that none of what you did was in your name,  because YOU are assisting HIM

Coupon-mad

That's good if you add the rest of the Template Defence.

However:

From the Template, I'd remove the stuff about the DLUHC draft IA; it's old news and I will be removing it from the template.

Instead, because they accused you of failing to pay part of a tariff, add and edit this to suit (below) courtesy of @troublemaker22 

...but re-number it to come AFTER your paras :

1. The breach complained of is that the driver of the vehicle allegedly failed to pay the parking tariff of £[] specified in the Claimant’s onsite notices for a stay of up to [] [minutes][hour(s)].

2. The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

3. The term at issue in this case is the one imposing a secondary obligation to pay £70 for breach of the primary obligation to pay the tariff.

4. The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case:

[T]he £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. (ibid at paragraph 99)

5. Those purposes are not served by the secondary term in this case.  The Claimant charges motorists for parking at this commercial car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods. On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and the secondary obligation in the present case is, therefore, a penalty and unenforceable. 

Hrobbo84

Gr1pr said:

Post the adapted 2 or 3 paragraphs below for critique or advice about them first 

Eventually all 30 or so will be used,  by adding the template paragraphs to your adapted ones

Before july the completed and signed pdf defence document will be emailed to claim.responses,  in his name 

I am truly glad that none of what you did was in your name,  because YOU are assisting HIM

I'm not sure if any of the info in 3.1 should be included?   Or if I should also include the fact he has knowledge that ticket was purchased but due to misleading signage it was 20p short in error .

Sorry I'm not great at this and its all a little confusing 

Hrobbo84

Coupon-mad said:

That's good if you add the rest of the Template Defence.

However:

From the Template, I'd remove the stuff about the DLUHC draft IA; it's old news and I will be removing it from the template.

Instead, because they accused you of failing to pay part of a tariff, add and edit this to suit (below) courtesy of @troublemaker22 

...but re-number it to come AFTER your paras :

1. The breach complained of is that the driver of the Defendant allegedly failed to pay the parking tariff of £[] specified in the Claimant’s onsite notices for a stay of up to [] [minutes][hour(s)].

2. The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

3. The term at issue in this case is the one imposing a secondary obligation to pay £70 for breach of the primary obligation to pay the tariff.

4. The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case:

[T]he £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. (ibid at paragraph 99)

5. Those purposes are not served by the secondary term in this case.  The Claimant charges motorists for parking at this commercial car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods. On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and the secondary obligation in the present case is, therefore, a penalty and unenforceable. 

So I am to remove just paragraph 9 and replace with these paragraphs?  ( meaning there would now be 34 In total?)

Gr1pr

Stick to paragraphs 1 & 2 & 3 from the template and then add the rest of the example by coupon mad above ,  then renumber to suit , dont add the rest of the template or paragraph 3.1, based on her advice above 

She will be replacing the template defence in due course,  hence this new advice